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Criminal. Texas. Hernandez v. State of Tex. May 3, 1954 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.

74 S.Ct. 667 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (Cite as: 347 U.S. 475, 74 S.Ct. 667)

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Supreme Court of the United States HERNANDEZ v. STATE OF TEXAS. No. 406. Argued Jan. 11, 1954. Decided May 3, 1954. Prosecution for murder wherein defendant moved to quash indictment and petit jury panel on ground that persons of Mexican descent were systematically excluded from service of jury commissioners, grand jurors, and petit jurors, although they were qualified to serve. The District Court, Jackson County, overruled motions and defendant appealed. The Court of Criminal Appeals, 251 S.W.2d 531, affirmed, and defendant was granted certiorari. The Supreme Court, Mr. Chief Justice Warren, held that evidence warranted finding that persons of Mexican descent were a separate class, distinct from whites, in the community in question, and that there had been a systematic exclusion of the members of such class from jury service. Judgment reversed. West Headnotes [1] Constitutional Law 92 3306

jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the state, whether acting through its legislature, its courts, or its executive or administrative officers. U.S.C.A.Const. Amend. 14. [2] Constitutional Law 92 3830

92 Constitutional Law 92XXVI Equal Protection 92XXVI(G) Juries 92k3830 k. In General. Most Cited Cases (Formerly 92k250.2(4), 92k221) The exclusion of a class of persons from jury service on grounds other than race or color may deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws. U.S.C.A.Const. Amend. 14. [3] Constitutional Law 92 3306

92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or Ethnicity 92k3305 Juries 92k3306 k. In General. Most Cited Cases (Formerly 92k221(1), 92k221) It is a denial of equal protection of the laws to try defendant of a particular race or color under an indictment issued by grand jury, or before a petit

92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or Ethnicity 92k3305 Juries 92k3306 k. In General. Most Cited Cases (Formerly 92k221(1), 92k221) Within contemplation of equal protection clause, operating to render invalid a trial of a defendant of a particular class under an indictment issued by grand jury, or before a petit jury, from which all persons of such class have been excluded, Negroes and whites are not the only two classes to which such protection extends, but other racial groups in a community may be included, depending upon whether it can be factually established that such a group exists within a community. U.S.C.A.Const. Amend. 14. [4] Constitutional Law 92 92 Constitutional Law 3057

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92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Reasonableness 92k3057 k. Statutes and Other Written Regulations and Rules. Most Cited Cases (Formerly 92k211(2), 92k211) Whether there exists within a community a particular class needing aid of courts in securing equal treatment under the laws is a question of fact, and when the existence of a distinct class is demonstrated, and it is further shown that laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Fourteenth Amendment have been violated. U.S.C.A.Const. Amend. 14. [5] Constitutional Law 92 3306

Ethnicity 92k3250 k. In General. Most Cited Cases (Formerly 92k215) The attitude of the particular community towards a group allegedly discriminated against is relevant as proof showing that such group, such as those persons of Mexican descent, constitutes a separate class distinct from whites therein. U.S.C.A.Const. Amend. 14. [7] Indictment and Information 210 140(2)

210 Indictment and Information 210VIII Motion to Quash or Set Aside 210k140 Hearing and Determination 210k140(2) k. Evidence. Most Cited Cases Jury 230 120

92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or Ethnicity 92k3305 Juries 92k3306 k. In General. Most Cited Cases (Formerly 92k221(1), 92k221) The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment, even though the particular state statute relative to selecting grand and petit jurors is fair on its face and capable of being utilized without discrimination, as well as in a discriminatory manner. Vernon's Ann.C.C.P. arts. 333-350, 592; Vernon's Ann.Civ.St. art. 2107; U.S.C.A.Const. Amend. 14. [6] Constitutional Law 92 3250

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k114 Challenge to Panel or Array, and Motion to Quash Venire 230k120 k. Affidavits and Other Evidence. Most Cited Cases In murder prosecution, wherein it was contended that persons of Mexican descent were systematically excluded from service as jury commissioners, grand jurors, and petit jurors, although there were such persons fully qualified to serve, evidence required conclusion that persons of Mexican descent constituted a separate class in the community in question, for purposes of charge of group discrimination. Vernon's Ann.C.C.P.Tex. arts. 333-350, 592; Vernon's Ann.Civ.St.Tex. art. 2107; U.S.C.A.Const. Amend. 14. [8] Jury 230 33(1)

92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k33 Constitution and Selection of Jury

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230k33(1) k. In General. Most Cited Cases Discrimination against any established class with respect to service as jurors, may be proved under rule of exclusion by showing an established practice of systematic exclusion of members of such class from jury service. Vernon's Ann.C.C.P.Tex. arts. 333-350, 592; Vernon's Ann.Civ.St.Tex. art. 2107; U.S.C.A.Const. Amend. 14. [9] Indictment and Information 210 140(2)

210k140(2) k. Evidence. Most Cited Cases Jury 230 120

210 Indictment and Information 210VIII Motion to Quash or Set Aside 210k140 Hearing and Determination 210k140(2) k. Evidence. Most Cited Cases Jury 230 120

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k114 Challenge to Panel or Array, and Motion to Quash Venire 230k120 k. Affidavits and Other Evidence. Most Cited Cases In murder prosecution, wherein defendant sought to quash the indictment and petit jury panel on ground that persons of Mexican descent, a class of which defendant was a member, were systematically excluded from service as jury commissioners, grand jurors, and petit jurors, evidence was sufficient to warrant finding that there had in fact been such systematic exclusion despite the eligibility of such members for jury service. Vernon's Ann.C.C.P. Tex. arts. 333-350, 592; Vernon's Ann.Civ.St.Tex. art. 2107; U.S.C.A.Const. Amend. 14. [10] Indictment and Information 210 210 Indictment and Information 210VIII Motion to Quash or Set Aside 210k140 Hearing and Determination 140(2)

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k114 Challenge to Panel or Array, and Motion to Quash Venire 230k120 k. Affidavits and Other Evidence. Most Cited Cases Mere general assertions of five jury commissioners that they had not discriminated against class of persons made up of those of Mexican or Latin American descent in selecting jurors, and that their only objective had been to select those whom they thought were best qualified, was insufficient to overcome strong prima facie case of denial by group discrimination, of equal protection of laws to defendant of Mexican descent, tried for murder made by showing that, though such persons constituted substantial percentage of population of the community, they had, for a period of years, been excluded or otherwise deprived of service on juries. Vernon's Ann.C.C.P.Tex. arts. 333-350, 592; Vernon's Ann.Civ.St.Tex. art. 2107; U.S.C.A.Const. Amend. 14. [11] Constitutional Law 92 3306

92 Constitutional Law 92XXVI Equal Protection 92XXVI(B) Particular Classes 92XXVI(B)8 Race, National Origin, or Ethnicity 92k3305 Juries 92k3306 k. In General. Most Cited Cases (Formerly 92k221(1), 92k221) Although the Fourteenth Amendment does not require proportional representation of all the component ethnic groups of the community on every jury, it does preclude systematic exclusion of a particular group shown to exist as a separate class in the community, when member of that class is on

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trial for criminal offense. Vernon's Ann.C.C.P. arts. 333-350, 592; Vernon's Ann.Civ.St. art. 2107; U.S.C.A.Const. Amend. 14. **669 Messrs. *476 Carlos C. Cadena, San Antonio, Tex., Gus C. Garcia, for petitioner. Mr. Horace Wimberly, Yoakum, Tex., for respondent. Mr. Chief Justice WARREN delivered the opinion of the Court. The petitioner, Pete Hernandez, was indicted for the murder of one Joe Espinosa by a grand jury in Jackson County, Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court. 251 S.W.2d 531. Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that persons of Mexican descent were systematically excluded from service as jury commissioners, FN1 grand jurors, and petit jurors, although there were such persons fully *477 qualified to serve residing in Jackson County. The petitioner asserted that exclusion of this class deprived him, as a member of the class, of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. After a hearing, the trial court denied the motions. **670 At the trial, the motions were renewed, further evidence taken, and the motions again denied. An allegation that the trial court erred in denying the motions was the sole basis of petitioner's appeal. In affirming the judgment of the trial court, the Texas Court of Criminal Appeals considered and passed upon the substantial federal question raised by the petitioner. We granted a writ of certiorari to review that decision. 346 U.S. 811, 74 S.Ct. 52. FN1. Texas law provides that at each term of court, the judge shall appoint three to five jury commissioners. The judge instructs these commissioners as to their duties. After taking an oath that they will not

knowingly select a grand juror they believe unfit or unqualified, the commissioners retire to a room in the courthouse where they select from the county assessment roll the names of 16 grand jurors from different parts of the county. These names are placed in a sealed envelope and delivered to the clerk. Thirty days before court meets, the clerk delivers a copy of the list to the sheriff who summons the jurors. Vernon's Tex.Code Crim.Proc. arts. 333-350. The general jury panel is also selected by the jury commission. Vernon's Tex.Civ.Stat. art. 2107. In capital cases, a special venire may be selected from the list furnished by the commissioners. Vernon's Tex.Code Crim.Proc. art. 592. [1][2][3] In numerous decisions, this Court has held that it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, whether acting through its legislature, its courts, or its executive or adminFN2 istrative officers. Although the Court has had little occasion to rule on the question directly, it has been recognized since Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, that the exclusion of a class of persons from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws. FN3 The State of Texas would have us hold that there are only two classes-white and Negro-within the contemplation of the Fourteenth Amendment. The decisions of this Court *478 do not support that FN4 view. And, except where the question presented involves the exclusion of persons of Mexican FN5 descent from juries, Texas courts have taken a broader view of the scope of the equal protection FN6 clause.

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FN2. See Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839. FN3. Nor if a law should be passed excluding all naturalized Celtic Irishmen (from jury service), would there be any doubt of its inconsistency with the spirit of the amendment. 100 U.S. at page 308, 25 L.Ed. 664. Cf. American Sugar Refining Co. v. State of Louisiana, 179 U.S. 89, 92, 21 S.Ct. 43, 44, 45 L.Ed. 102. FN4. See Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Takahaski v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Cf. Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774: Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. FN5. Sanchez v. State, 147 Tex.Cr.R. 436, 181 S.W.2d 87; Salazar v. State, 149 Tex.Cr.R. 260, 193 S.W.2d 211; Sanchez v. State, Tex.Cr.App., 243 S.W.2d 700. FN6. In Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091, the Texas court held that the systematic exclusion of Roman Catholics from juries was barred by the Fourteenth Amendment. In Clifton v. Puente, Tex.Civ.App., 218 S.W.2d 272, the Texas court ruled that restrictive covenants prohibiting the sale of land to persons of Mexican descent were unenforceable. [4] Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same pro-

tection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a two-class theory-that is, based upon differences between white and Negro. [5] As the petitioner acknowledges, the Texas system of selecting grand and petit jurors by the use of jury commissions is fair on its face and capable of **671 being utilized *479 without discriminaFN7 tion. But as this Court has held, the system is susceptible to abuse and can be employed in a disFN8 criminatory manner. The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. The Texas statute makes no such discrimination, but the petitioner alleges that those administering the law do. FN7. Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84. FN8. Smith v. State of Texas, supra, note 7 ; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Ross v. State of Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352. [6][7] The petitioner's initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from FN9 whites.' One method by which this may be demonstrated is by showing the attitude of the community. Here the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between white and Mexican. The participation of persons of Mexican descent in business and community groups

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was shown to be slight. Until very recent times, children of Mexican descent were required to attend FN10 a segregated school for the first four grades. At least one restaurant in town prominently displayed a sign announcing No Mexicans Served. On the courthouse grounds at the time of the *480 hearing, there were two men's toilets, one unmarked, and the other marked Colored Men and Hombres Aqui (Men Here). No substantial evidence was offered to rebut the logical inference to be drawn from these facts, and it must be concluded that petitioner succeeded in his proof. FN9. We do not have before us the question whether or not the Court might take judicial notice that persons of Mexican descent are there considered as a separate class. See Marden, Minorities in American Society; McDonagh & Richards, Ethnic Relations in the United States. FN10. The reason given by the school superintendent for this segregation was that these children needed special help in learning English. In this special school, however, each teacher taught two grades, while in the regular school each taught only one in most instances. Most of the children of Mexican descent left school by the fifth or sixth grade. [8] Having established the existence of a class, petitioner was then charged with the burden of proving discrimination. To do so, he relied on the pattern of proof established by Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 584, 79 L.Ed. 1074. In that case, proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time, was held to constitute prima facie proof of the systematic exclusion of Negroes from jury service. This holding, sometimes called the rule of exclusion, has been FN11 applied in other cases, and it is available in supplying proof of discrimination against any delin-

eated class. FN11. See note 8, supra. The petitioner established that 14% of the population of Jackson County were persons with Mexican or Latin American surnames, and that 11% of FN12 the males over 21 bore such names. The County Tax Assessor testified *481 that 6 or 7 percent of the freeholders on the **672 tax rolls of the County were persons of Mexican descent. The State of Texas stipulated that for the last twenty-five years there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson FN13 County.' The parties also stipulated that there are some male persons of Mexican or Latin American descent in Jackson County who, by virtue of being citizens, freeholders, and having all other legal prerequisites to jury service, are eligible to serve as members of a jury commission, grand jury and/ FN14 or petit jury.' FN12. The 1950 census report shows that of the 12,916 residents of Jackson County, 1,865, or about 14% had Mexican or Latin American surnames. U.S. Census of Population, 1950, Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 45. Of these 1,865, 1,738 were native born American citizens and 65 were naturalized citizens. Id., Vol. IV, pt. 3, c. C, p. 45. Of the 3,754 males over 21 years of age in the County, 408, or about 11% had Spanish surnames. Id., Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 67. The State challenges any reliance on names as showing the descent of persons in the County. However, just as persons of a different race are distinguished by color, these Spanish names provide ready identification of the members of this class. In selecting jurors, the jury commissioners work from a list of names. FN13. R. 34.

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FN14. R. 55. The parties also stipulated that there were no persons of Mexican or Latin American descent on the list of talesmen. R. 83. Each item of each stipulation was amply supported by the testimony adduced at the hearing. [9][10] The petitioner met the burden of proof imposed in Norris v. Alabama, supra. To rebut the strong prima facie case of the denial of the equal protection of the laws guaranteed by the Constitution thus established, the State offered the testimony of five jury commissioners that they had no discriminated against persons of Mexican or Latin American descent in selecting jurors. They stated that their only objective had been to select those whom they thought were best qualified. This testimony is not enough to overcome the petitioner's case. As the Court said in Norris v. Alabama: That showing as to the long-continued exclusion of negroes from jury service, and as to the many negroes qualified for that service, could not be met by mere generalities. If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for *482 the complete exclusion of negroes from jury service, the constitutional provision * * * FN15 would be but a vain and illusory requirement.' FN15. 294 U.S. at page 598, 55 S.Ct. at page 583. The same reasoning is applicable to these facts. Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in their being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner. The judgment of convic-

tion must be reversed. [11] To say that this decision revives the rejected contention that the Fourteenth Amendment requires proportional representation of all the component ethnic groups of the community on every FN16 jury ignores the facts. The petitioner did not seek proportional representation, nor did he claim a right to have persons of Mexican descent sit on the FN17 particular juries which he faced. **673 His only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded-juries selected from among all qualified persons regardless of national origin or descent. To this much, he is entitled by the Constitution. FN16. See Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692; Cassell v. State of Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631, 94 L.Ed. 839. FN17. See Akins v. State of Texas, supra, note 16, 325 U.S. at page 403, 65 S.Ct. at page 1279. Reversed. U.S. 1954. Hernandez v. State of Tex. 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 END OF DOCUMENT

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